Tying Arrangements: Avoiding Antitrust Liability

Presenting a live 90-minute webinar with interactive Q&A
Tying Arrangements: Avoiding Antitrust Liability
Leveraging Market Power Arguments and Seller Defenses
TUESDAY, MAY 1, 2012
1pm Eastern
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12pm Central | 11am Mountain
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Today’s faculty features:
Thomas S. Hixson, Partner, Bingham McCutchen, San Francisco
Howard M. Ullman, Of Counsel, Orrick Herrington & Sutcliffe, San Francisco
Kevin D. McDonald, Partner, Jones Day, Washington, D.C.
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I.
Tying Arrangement Rules and
Jurisprudence
A.
What is tying?
B.
Tying statutes: Clayton Act,
Sherman Act and Federal Trade
Commission Act
Tom Hixson
thomas.hixson@bingham.com
415.393.2152
Bingham McCutchen LLP
San Francisco, California
May 1, 2012
“[A] tying arrangement may be defined as an
agreement by a party to sell one product [the tying
product] but only on the condition that the buyer also
purchases a different (or tied) product, or at least
agrees that he will not purchase that product from any
other supplier.”
Northern Pacific Railway Co. v. United States, 356
U.S. 1, 5-6 (1958).
7
“[Tying arrangements] deny competitors free
access to the market for the tied product, not
because the party imposing the tying
requirements has a better product or a lower
price but because of his power or leverage in
another market.”
Northern Pacific Railway, 356 U.S. at 6.
8
Challenging Tying Arrangements
Section 1 of the Sherman Act:
“Every contract, combination in the form of
trust or otherwise, or conspiracy, in restraint of
trade or commerce among the several States,
or with foreign nations, is declared to be
illegal.”
15 U.S.C. § 1
9
Challenging Tying Arrangements
Section 3 of the Clayton Act (but only for products – not services):
“It shall be unlawful for any person engaged in commerce, in the
course of such commerce, to lease or make a sale or contract for sale
of goods, wares, merchandise, machinery, supplies, or other
commodities, whether patented or unpatented, for use, consumption, or
resale within the United States or any Territory thereof or the District of
Columbia or any insular possession or other place under the
jurisdiction of the United States, or fix a price charged therefor, or
discount from, or rebate upon, such price, on the condition, agreement,
or understanding that the lessee or purchaser thereof shall not use or
deal in the goods, wares, merchandise, machinery, supplies, or other
commodities of a competitor or competitors of the lessor or seller,
where the effect of such lease, sale, or contract for sale or such
condition, agreement, or understanding may be to substantially lessen
competition or tend to create a monopoly in any line of commerce.”
15 U.S.C. § 14
10
Challenging Tying Arrangements
Section 5 of the FTC Act:
“Unfair methods of competition in or affecting
commerce, and unfair or deceptive acts or
practices in or affecting commerce, are hereby
declared unlawful.”
15 U.S.C. § 45(a)(1)
11
“Tying agreements serve hardly any purpose beyond the
suppression of competition.”
Standard Oil Co. v. United States, 337 U.S. 293, 205 (1949).
“Our cases have concluded that the essential characteristic of an
invalid tying arrangement lies in the seller’s exploitation of its
control over the tying product to force the buyer into the
purchase of a tied product that the buyer either did not want at
all, or might have preferred to purchase elsewhere on different
terms.”
Jefferson Parish Hosp. Dist. No. 2. v. Hyde, 466 U.S. 2, 12
(1984).
12
Elements of a Per Se Challenge to
a Tying Arrangement
• Two separate products or services are involved
• The sale or agreement to sell one product or
service is conditioned on the purchase of
another
• The seller has sufficient economic power in the
market for the tying product to enable it to
restrain trade in the market for the tied product
• A not insubstantial amount of interstate
commerce is affected
13
First Element: Two Separate
Products or Services
“[A] tying arrangement cannot exist unless two
separate product markets exist.”
“[T]he answer to the question whether one or
two products are involved turns not on the
functional relation between them, but rather on
the character of the demand for the two items.”
Jefferson Parish, 466 U.S. at 19, 21.
14
Second Element: Proof of
Conditioning
“Of course, where the buyer is free to
take either product for itself there is no
tying problem even though the seller
may also offer the two items as a unit at
a single price.”
Northern Pacific, 356 U.S. at 6 n.4.
15
Second Element: Proof of
Conditioning
Universal Grading Service v. eBay, Inc.,
No. C-09-2755, 2012 WL 70644 (N.D. Cal.
Jan. 9, 2012): No allegations that
showed conditioning under eBay’s
Counterfeit Currency and Stamps Policy.
16
Third Element: Market Power in
the Tying Product
“[I]n all cases involving a tying
arrangement, the plaintiff must prove
that the defendant has market power in
the tying product.”
Illinois Tool Works v. Independent Ink,
547 U.S. 28, 46 (2006).
17
Third Element: Market Power in
the Tying Product
A patent in the tying product does not
create a presumption of market power.
Illinois Tool Works v. Independent Ink,
547 U.S. 28 (2006)
18
Fourth Element: A Substantial
Amount of Commerce in the Tied
Product Is Affected
“[W]e have refused to condemn tying
arrangements unless a substantial
volume of commerce is foreclosed
thereby.”
Jefferson Parish, 466 U.S. at 16.
19
Fourth Element: A Substantial
Amount of Commerce in the Tied
Product Is Affected
Brantley v. NBC Universal, Inc., __ F.3d
__, No. 09-56785, 2012 WL 1071257 (9th
Cir. March 30, 2012):
Tying is about suppressing competition
in the market for the tied product, not
protecting customers from buying
unwanted products.
20
Tying Law Is Still Evolving
Rule of reason – not per se – applies
“where the tying product is software
whose major purpose is to serve as a
platform for third-party applications and
the tied product is complementary
software functionality.”
United States v. Microsoft, 253 F.3d 34
(D.C. Cir. 2001).
21
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Tying Arrangements: Avoiding
Antitrust Liability
Leveraging Market Power Arguments and Seller Defenses
DEVELOPMENT AND HISTORY OF TYING LAW
May 1, 2012
Howard M. Ullman
Orrick, Herrington & Sutcliffe LLP
hullman@orrick.com
blog: http://www.mydistributionlaw.com
Starting Point: Jefferson Parish
Under certain circumstances, a tying arrangement may be per se illegal
• Jefferson Parish Hosp. Dist. No. 2 v. Hyde, 466 U.S. 2, 12-13 (1984)
Basic elements of a per se claim (covered in first part of webinar)
• Conditioned purchase (or lease)
• Separate and distinct products
• Market power over the tying product sufficient to “force” buyer to
purchase tied product
• “Not insubstantial” effect on (interstate) commerce
Rule of Reason applies to ties that are not per se illegal
24
Overview
How did we get here?
• Early approaches
• The Supreme Court’s Fortner decisions
Jefferson Parish
Post-Jefferson Parish cases
Kodak and derivative aftermarkets – am I safe just because I have a small
market share?
Post-Kodak issues, including some brief thoughts on intellectual property
(IP) issues
Defenses / best practices
25
Early Approaches
“Economic power” in the tying product requirement
Patent cases: requisite showing found where seller used a patent
monopoly over the tying product to force purchasers to accept an
unpatented product (so-called patent tying)
• International Salt Co. v. United States, 332 U.S. 392 (1947)
• IBM Corp. v. United States, 298 U.S. 131 (1936)
Necessary to establish monopoly power over the tying product to find a
per se violation of Sherman Act § 1
• Times-Picayune Publishing Co. v. United States, 345 U.S. 594 (1953)
26
1950s–1960s Era
Monopoly power or “dominance” not a precondition to per se unlawful
tying under the Sherman Act
• Northern Pacific Ry. v. United States, 356 U.S. 1 (1958). Question is not
whether defendant has or approaches actual monopoly, but whether “a party
has sufficient economic power with respect to the tying product to appreciably
restrain free competition in the market for the tied product.” Id. at 6
• United States v. Loew’s, Inc., 371 U.S. 38 (1962). Block-booking of package
of motion pictures for TV distribution. “Even absent a showing of market
dominance, the crucial economic power may be inferred from the tying
product’s desirability to consumers or from uniqueness in its attributes.” Id. at
45. In the case of copyrighted films (or patented products), “[t]he requisite
economic power is presumed.” Id. at 45
27
The Fortner Cases (Late 1960s-1970s)
Fortner Enterprises, Inc. v. United States Steel Corp., 394 U.S. 495 (1969)
(Fortner I)
United States Steel Corp. v. Fortner Enterprises, Inc., 429 U.S. 610 (1977)
(Fortner II)
• U.S. Steel Homes Credit Corp. (a subsidiary) allegedly conditioned the
granting of loans with very favorable terms on Fortner’s agreement to
purchase U.S. Steel’s prefabricated homes
• Tying product: loans. Tied product: prefabricated homes
28
Fortner I
Unique and advantageous product could support a tie
Supreme Court reversed summary judgment in favor of defendants
• Fortner had alleged enough re tying product market power to require a trial on
the issue of per se illegality. Fortner I, 394 U.S. at 506
• Economic power adequately alleged because the “unique” and advantageous
financing terms could reflect competitive advantage in the credit market. Id.
at 505. “[T]he proper focus of concern is whether the seller has the power to
raise prices, or impose other burdensome terms such as a tie-in, with respect
to any appreciable number of buyers within the market.” Id. at 504
29
Fortner II
Uniqueness not enough; cost advantage or significantly differentiated
product
Two trials later, the court of appeals affirmed verdict for plaintiff. Case
returned to the Supreme Court
• The Court reversed again, finding insufficient evidence that defendant had
“appreciable economic power” in the tying product market. Fortner II, 429
U.S. at 611-12
• Uniqueness or desirability of tying product may sometimes justify per se
treatment, but not always:
— “[T]he question is whether the seller has some advantage not shared by
his competitors in the market for the tying product. Without any such
advantage differentiating his product from that of his competitors, the
seller’s product does not have the kind of uniqueness considered relevant
in prior tying-clause cases.” Id. at 620-21
30
Fortner II
Insufficient evidence of economic power in the credit market
• 100% financing was “unique” in the sense that no one else offered it, but this
sort of uniqueness did not demonstrate economic power:
— “Quite clearly, if the evidence merely shows that credit terms are unique
because the seller is willing to accept a lesser profit – or to incur greater
risks – than its competitors, that kind of uniqueness will not give rise to any
inference of economic power in the credit market . . . .” Id. at 621-22
• Without evidence that defendant had some cost advantage over its
competitors, or could offer a form of financing that was significantly
differentiated from that which other lenders could offer, the unique character
of financing did not support conclusion of economic power. Id. at 622
31
Pre-Jefferson Parish Summary
Monopoly power required for per se treatment?
• Yes: Times-Picayune Publishing Co.
• No: Northern Pacific Ry.
Patent establishes monopoly power? Yes
Unique attributes sufficient?
• Yes: Loew’s
• No: Fortner II
Cost advantage or a significantly differentiated product
• ???
In short, the law was in flux and not entirely clear
32
Jefferson Parish
Hospital contract with a group of anesthesiologists required all
anesthesiology services to be performed by the group
Tying product: hospital services. Tied product: anesthesiology
Focus on sufficient market power
• Five-Justice majority opinion: certain ties are per se illegal, others are
evaluated under the Rule of Reason. Forcing is required – the seller uses its
market power “to force the buyer into the purchase of a tied product that the
buyer either did not want at all, or might have preferred to purchase
elsewhere on different terms.” Id. at 12
• Per se condemnation is appropriate only if the existence of forcing is probable
or likely. Forcing is likely only if the seller possesses “market power,” as
demonstrated by (i) a patent monopoly or similar monopoly, (ii) a high market
share, or (iii) a unique product that others cannot offer. Id. at 15-17
33
Jefferson Parish
Sufficient market power
• Consumer preference for the hospital was not necessarily probative of
significant market power. Id. at 26
• Hospital’s 30% market share was by itself insufficient to infer market power
— Post-Jefferson Parish, few if any courts have found requisite market power
from a market share below 30%
— 30% to 50%: a per se tying claim is theoretically possible, although
probably not very strong
— Above 50%: per se tying claims begin to have some substantial weight
34
Post-Jefferson Parish Cases
A number of courts have rejected plaintiffs’ claims, finding no market
power in the tying product market. E.g., trademarked products / franchise
cases after Jefferson Parish
• Webb v. Primo’s, Inc., 706 F. Supp. 863, 869 (N.D. Ga. 1988) (franchisor
lacked market power because there were many other pizza, sub and Italian
restaurants in market)
• Mozart Co. v. Mercedes-Benz of N. Am., Inc., 833 F.2d 1342, 1346-47 (9th
Cir. 1987) (uniqueness of Mercedes cars to consumers did not establish
uniqueness in the market for dealership franchises, which was the relevant
market) (dictum)
35
Post-Jefferson Parish Cases
Generally, courts have focused on market power as measured through
market share, rather than examining “uniqueness”
• Klo-Zik Co. v. General Motors Corp., 677 F. Supp. 499 (E.D. Tex. 1987)
(engines were not significantly different from other engines to be unique;
although engines were patented, no showing of effects patents had on
product’s interchangeability with other products)
But there have been exceptions
• Microbyte Corp. v. New Jersey State Golf Ass’n, 1986-2 Trade Cas. (CCH)
¶ 67,228 at p. 61,163 (D.N.J. 1986) (sponsored golf tournaments were unique
because of association prestige and tradition)
• Tic-X-Press, Inc. v. Omni Promotions Co. of Ga., 815 F.2d 1407, 1420 (11th
Cir. 1987) (defendant controlled only enclosed concert facility that could seat
more than 4,000 people)
36
Post-Jefferson Parish Cases
Truly unique products may support a tying claim
• Seventh Circuit: to support a finding of uniqueness, a plaintiff must show a
barrier to entry that prevents competition and that uniqueness means the
inability of a seller’s rivals to offer a similar package, not simply the fact that
no rival has chosen not to do so. Will v. Comprehensive Accounting Corp.,
776 F.2d 665, 672 (7th Cir. 1985), cert. denied, 475 U.S. 1129 (1986)
• Other courts look to cost or competitive advantage that cannot be duplicated
• Query whether a defendant with a truly unique product can ever have less
than a very high market share, i.e., are the two tests really the same?
Patents continued to presumptively confer market power (but not after
Illinois Tool, infra)
37
Post-Jefferson Parish Cases
Sometimes even market power doesn’t require per se treatment. See
United States v. Microsoft Corp., 253 F.3d 34, 89 (D.C. Cir.) (en banc), cert.
denied, 534 U.S. 952 (2001). There, the court declined to apply the per se
rule to arrangements involving the bundling (technological integration) of
computer (platform/application) software
• Such arrangements may have pro-competitive efficiencies
• Jefferson Parish’s two product test does not authorize an inquiry into the
efficiencies of the bundle
• Software bundling is commonly employed even by firms without market
power
• The judiciary has insufficient experience with computer software tying
arrangements to permit a confident conclusion that they are predominantly
anticompetitive
38
Post-Jefferson Parish Cases
The offense of per se tying remains a somewhat strange or hybrid sort of
per se offense. The per se rule is only triggered after some significant
inquiry into the status of the tying product market
• “The ‘per se’ doctrine in tying cases has thus always required an elaborate
inquiry into the economic effects of the tying arrangement.” Jefferson Parish,
466 U.S. at 34 (O’Connor, J., concurring)
• “[T]here is often no bright line separating per se from Rule of Reason
analysis. Per se rules may require considerable inquiry into market
conditions before the evidence justifies a presumption of anticompetitive
conduct. For example, while the Court has spoken of a ‘per se’ rule against
tying arrangements, it has also recognized that tying may have
procompetitive justifications that make it inappropriate to condemn without
considerable market analysis.” NCAA v. Board of Regents, 468 U.S. 85, 104
n. 26 (1984)
39
Kodak and Aftermarkets
Or: “You’re not necessarily safe even if you have a low primary market
share”
Eastman Kodak Co. v. Image Technical Services, Inc., 504 U.S. 451 (1992)
• Kodak implemented policies to prevent independent service organizations
(ISOs) from obtaining replacement parts for Kodak copiers, making it difficult
or impossible for ISOs to compete with Kodak in providing copier service to
end-users
• ISOs claimed that Kodak had unlawfully tied service to parts
• The Supreme Court held that Kodak was not entitled to summary judgment
on a Section 1 claim or on a Section 2 (monopolization) claim
40
Kodak
Sufficient evidence that Kodak had power over parts to force customers to
purchase unwanted service from Kodak
• Kodak controlled 100% of the tying product market (Kodak-compatible
replacement parts)
• Customers had been forced to buy Kodak’s service, which was allegedly
inferior and more expensive. Id. at 464-65
41
Kodak
Derivative aftermarkets and market power
• Kodak argued that it lacked market power in the primary equipment market
for copiers and therefore, as a matter of law, could not have market power in
derivative aftermarkets for parts of service. The Court, assuming that the
primary market was competitive, rejected this argument
— No evidence that Kodak had actually lost equipment sales after it raised
service prices. Id. at 472
— High aftermarket prices could depress primary market sales only if
consumers were knowledgeable of the total cost of the package –
equipment, service, and parts – at the time of purchase, i.e., consumers
must engage in accurate lifecycle pricing. Id. at 473
— If “lock-in” or brand switching costs are high, consumers will tolerate some
level of service price increases before changing brands. Id. at 476-77
42
Kodak
Thus, post-Kodak, a small market share in a primary market will not
necessarily preclude application of the per se rule to tying involving a
derivative or aftermarket
Kodak asserted business justifications
• Need to ensure quality service
• Need to control inventory costs
• Desire to prevent ISOs from free-riding on Kodak’s efforts
Insufficient to prove that Kodak was entitled to judgment as a matter of
law. Id. at 483-86
43
Post-Kodak Era
Patents themselves no longer establish market power
• Illinois Tool Works, Inc. v. Independent Ink, Inc., 547 U.S. 28 (2006)
— “After considering the congressional judgment reflected in the 1988
amendment [to the Patent Act], we conclude that tying arrangements
involving patented products should be evaluated under the standards
applied in cases like Fortner II and Jefferson Parish rather than under the
per se rule applied in … Loew’s. While some such arrangements are still
unlawful, such as those that are the product of a true monopoly or a
marketwide conspiracy, see, e.g., United States v. Paramount Pictures,
Inc., 334 U. S. 131, 145-146 (1948), that conclusion must be supported by
proof of power in the relevant market rather than by a mere presumption
thereof.” Id. at 42-43
Market power is the key inquiry
44
Defenses and Best Practices
Always consider your market share and market position before imposing a
tie
If you are considering a tie involving aftermarkets, consider whether
lifecycle pricing is transparent to consumers, and consider not imposing a
tie on consumers who have already purchased product in the primary
market
Goal is always to obtain Rule of Reason, rather than per se treatment
• Rule of Reason victories for plaintiffs are rare; must show actual adverse
effect on competition
45
Insufficient Justifications
Justifications generally – in per se cases versus Rule of Reason cases
• Strange nature of “per se” tying offense
• Kodak and Jefferson Parish don’t suggest justifications, but some courts
have considered and sometimes accepted defenses
Insufficient
• Buyer could purchase tied product from someone else
• Sporadic enforcement of ties, or convenience of seller
• Protection of goodwill, or quality control if there is a less restrictive way to
protect these interests (e.g., by specifying product standards, designating
approved outside suppliers, etc.)
— International Salt, 332 U.S. at 397-98; Jefferson Parish, 466 U.S. at 25 n.
42
46
Potentially Plausible Justifications
Necessity of tie to assure effective functioning of new products or
equipment in an emerging industry
Necessity of tie to assure product utility / compatibility where separate
sales lead to widespread customer dissatisfaction
Products must be used together and specifications of possible substitutes
for tied product cannot practicably be provided (too complex, disclosure of
trade secrets, etc.)
47
Tying Arrangements: Avoiding
Antitrust Liability
Leveraging Market Power Arguments and Seller Defenses
DEVELOPMENT AND HISTORY OF TYING LAW
May 1, 2012
Howard M. Ullman
Orrick, Herrington & Sutcliffe LLP
hullman@orrick.com
blog: http://www.mydistributionlaw.com
Intellectual Property and Tying After
Illinois Tool Works:
Is There a Per Se Rule Against Tying?
Kevin D. McDonald
kdmcdonald@jonesday.com
For Strafford Publications
May 1, 2012
What Is Tying?
• When a seller conditions the sale of a product
on the purchase of a second product, or on an
agreement that the second product will not be
bought from someone else.
See, No. Pacific Rwy., 356 U.S. at 5-6.
50
Why Do Sellers Use Ties?
•
•
•
•
Consumers demand them
Quality control
Risk sharing for new products
Price discrimination / Metering
– Hovenkamp, Janis, & Lemley, IP AND ANTITRUST §
21.2 at 21-12 (metering is “nearly always procompetitive”)
– F. H. Easterbrook, Intellectual Property Is Still Property, 13
HARV. J.L. & PUB. POL’Y at 112 (price discrimination
through tying achieves “the best of both worlds”).
51
The Attitude Toward Tying Has
“Evolved” Over The Last Century
• 1947: “[T]he tendency of the arrangement to the
accomplishment of monopoly seems obvious.”
International Salt, 332 U.S. at 396.
• 1988: “[B]oth the majority and minority opinion in
[Hyde] recognized that tying’s anticompetitive
mechanism is not obvious.” Grappone, 858 F. 2d at
794 (Breyer, J.)
52
Tying is Now Viewed As
Generally Procompetitive
• 1949: “Tying agreements serve hardly any purpose
beyond the suppression of competition.” Standard Oil,
337 U.S. at 305.
• 2004: “Today it seems quite clear that most tie-ins
benefit competition, even when the defendant has tying
product power.” IX Areeda & Hovenkamp, ¶ 1720a at
220.
53
The ‘per se’ rule arose in patent cases,
based on the leveraging fallacy.
• 1912: Tying allows the patentee “to bring within the
claims of his patent things which are not embraced
therein, thus … to multiply monopolies at the will of
an interested party.” Henry v. A.B. Dick, 224 U.S. 1, 53
(White, C.J., dissenting).
• 1984: “[A] tied product normally does not increase the
profit that the seller with market power can extract
from sales of the tying product.” Hyde, 466 U.S. at 36.
54
The Per Se Rule Against “Tying”
I.
II.
Two Products
Sale Of Tying Product Conditioned On Purchase
Of Tied Product
III. Market Power In Tying Product
(Even If Patented)
IV. Volume Of Business In Tied Product Not
“Insignificant Or Insubstantial”
55
Why Is Power in
the Tying Product Important?
• Without market power in the tying product, “no tying
arrangement can harm competition.” 10 Areeda &
Hovenkamp, ¶ 1734b3 at 39.
• “[H]ow can a firm with only 30 percent of a market
exclude competitors by tying two products together?
A firm that wants to produce only one will have no
trouble finding customers.” R. A. Posner, Antitrust
Law at 265 (2d ed.).
56
The Court Never Thought That Patents
Conveyed Actual Market Power
• 1958: “Of course it is common knowledge that
a patent does not always confer a monopoly
over a particular commodity. Often the patent is
limited to a unique form or improvement of the
product and the economic power resulting from
the patent privileges is slight.”
• No. Pacific Ry., 356 U.S. at 10 n.8 (emphasis added).
57
The Court Eventually Required
Real Market Power In The Tying Product
• Fortner II (1977) and Hyde (1984) rejected uniqueness
as insufficient to show real market power.
• After Hyde, the lower courts split, with the majority
rejecting a presumption of market power in patent
cases.
58
The Unfortunate Dictum in Hyde
1984: “For example, if the Government
has granted the seller a patent . . . it is fair
to assume that the inability to buy the
product elsewhere gives the seller market
power. Loew’s, 371 U.S., at 45-47.”
Hyde, 466 U.S. at 16.
59
The Consensus That Patents
Do Not Convey Market Power
• 1988: Congress amended the patent laws to
ensure that a claim of tying raised as a “misuse”
defense to a patent enforcement action could
not succeed without proof of market power in
the tying product. 35 U.S.C. § 271(d)(4), (5)).
• 1995: Both enforcement agencies adopted
guidelines eschewing any presumption that “a
patent, copyright, or trade secret necessarily
confers market power upon its owner.”
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Illinois Tool Works: A Classical Tie
• To buy Illinois Tool Works’ patented printhead
for applying barcodes to packages, you must
buy the unpatented ink it uses from Illinois Tool
works as well.
• The Federal Circuit affirmed dismissal of the §2
claims, but reversed on tying, saying it was
bound by Loew’s to presume market power in
the patented tying product.
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Illinois Tool Works’ Simple Holding:
“Today, we … hold that, in all cases
involving a tying arrangement, the
plaintiff must prove that the defendant has
market power in the tying product.”
Illinois Tool Works v. Independent Ink, 126 S. Ct. 1281, 1293 (2006).
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Illinois Tool Works’ “Guidance”
“While some such arrangements are still
unlawful, such as those that are the product of
a true monopoly or a market wide conspiracy,
see, e.g., United States v. Paramount Pictures,
Inc., 334 U.S. 131, 145-146 (1948), that
conclusion must be supported by proof of power
in the relevant market ….”
Id. at 1291.
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AFTER ILLINOIS TOOL WORKS
• IS THE PER SE RULE DEAD?
° It is at least “mostly” dead …
• WHAT LANGUAGE IN ILLINOIS TOOL WORKS
SAYS SO?
° Well … nothing, actually.
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Ask Judge Diane Wood:
• “Illinois Tool Works thus stands only for the
proposition that a plaintiff must prove that a
holder of intellectual property has … market
power…. If a plaintiff can do so, then the [per
se] framework of [Hyde] continues to apply.”
• Reifert v. South Central Wisc. MLS Corp., No. 05-3601 at 17 (7th Cir.
6/12/06)
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The DOJ/FTC IP Report Concurs:
• “Although in Illinois Tool Works Inc. v.
Independent Ink, Inc. the Supreme Court
recognized that many tying arrangements, ‘even
those involving patents and requirements ties,’
can be procompetitive, that case did not present
a vehicle for the Court to revisit its conclusion
that some tying arrangements constitute per se
violations.” [DOJ/FTC IP Report at 109.]
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The DOJ and FTC Have Already
Rejected The Per Se Rule
• “Pursuant to the Antitrust-IP Guidelines,
the Agencies, as a matter of prosecutorial
discretion, consider both the anticompetitive effects and the efficiencies attributable
to a tie.” DOJ/FTC IP Report at 110 (2007).
67
Compare Hyde Opinion:
“It is far too late in the history of our antitrust jurisprudence to
question the proposition that certain tying arrangements …
are unreasonable ‘per se.’” [Hyde, 466 U.S. at 9]
With Illinois Tool:
“Many tying arrangements, even those involving patents and
requirements ties, are fully consistent with a free,
competitive market.” [ITW, 126 S. Ct. at 1292]
68
Abraham v. Intermountain Health Care,
461 F.3d 1249, 1264 (10th Cir. 2006).
• Whether products can be considered
distinct turns … on the character of the
demand for the two items.” Jefferson
Parish Hosp. Dist. No. 2 v. Hyde, 466 U.S.
2, 19 (1984), abrogated on other
grounds by Illinois Tool Works v. Indep.
Ink, 126 S. Ct. 1281 (2006).
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Evading The Per Se Rule
Before Illinois Tool
• U.S. Philips Corp. v. ITC, 424 F.3d 1179
(Fed. Cir. 2005)
• Bundling of “essential” with “non-essential”
patents alleged to be per se misuse
• The Court affirmed the finding of market
power in the tying product.
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So, Why Not Per Se Misuse?
• “In the case of patent-to-product tying, the
patent owner uses the market power conferred
by the patent to compel customers to purchase a
product in a separate market.”
• “By contrast, a package licensing agreement
that includes both essential and nonessential
patents does not impose any requirement on the
licensee.”
U.S. Philips, 424 F.3d at 1189-90.
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Thus Did U.S. Philips
Reject The Per Se Rule …
• “The package license is thus not anticompetitive in the
way that a compelled purchase of a tied product would
be.” [Id. At 1190.]
• “[Accordingly,] the analysis that led the Commission
to apply the rule of per se illegality … was legally
flawed.” [Id. At 1193.]
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What Happens After Illinois Tool?
• Monsanto Co. v. Mitchell Scruggs, et al., No.
04-1532 (Fed. Cir., August 16, 2006).
• Monsanto’s licenses “stated that if a grower
chose to use glyphosate herbicide in connection
with [Monsanto’s patented] seeds, then the
grower must use [Monsanto’s unpatented]
herbicide.” [Slip Op. at 15.]
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Now, A Patent-To-Product Tie Can Also
Ignore The Per Se Rule
• “The [district] court stated that if the seed
partner agreements did amount to a tie, per se
treatment was not appropriate.” [p. 16]
• “In this unusual setting, the rule of reason
applies to the defense of patent misuse based on
the alleged tying arrangement.” [p. 19.]
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The Even Less Subtle Approach
of the Seventh Circuit
• “In 1985, our Circuit began to incorporate the rule of
reason in our tying analysis [in the Carl Sandburg
Village case].” Reifert v. So. Central Wisc. MLS Corp.,
450 F.3d 312, 317 n.2 (7th Cir. 2006).
• “[T]he Supreme Court recently adopted Justice
O’Connor’s reasoning in [Hyde in] … Ill. Tool Works
….” Id.
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So … What Per Se Rule?
• “Although the per se analysis of the [Hyde]
majority was not expressly overruled, in the
intervening twenty-one years since Carl
Sandburg, the Supreme Court has not found
occasion to disagree with this Circuit’s
approach.” [Reifert, 450 F.3d at 317 n.2.]
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There has long been some support
for viewing tying’s per se “rule”
only as a guideline
• Supreme Court: U.S. v. Jerrold Elec. Corp., 365 U.S.
567 (1961) (per curiam).
• First Circuit (Breyer, J.): Grappone, Inc. v. Subaru of
New England, 858 F.2d 792, 799 (1st Cir. 1988) (“it is
conceivable that the ‘tie’ was ‘efficient’ enough a way
to do business that the agreement could have escaped
per se condemnation …”).
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Einer Elhauge,
“TYING, BUNDLED DISCOUNTS, AND THE DEATH OF
THE SINGLE MONOPOLY PROFIT THEORY”
• “But the Court has always considered procompetitive
justifications before rejecting them, and Illinois Tool Works
affirmatively states that the Court now accepts the view that ties
can have procompetitive justifications. …
Accordingly, today it is more accurate to read Supreme
Court precedent on tying as embracing a rule of reason, where
anticompetitive effects must be shown or inferred and
procompetitive justifications are admissible.”
• 123 Harv. L.Rev. 397, 425-6 (2010)
78
Bundling as Coercion?
• “[P]laintiff may] stake its tying claim not on a theory
that PeaceHealth explicitly (e.g., by contract) or
implicitly coerced insurers to purchase [the tied
product] … as a condition of obtaining [the tying
product], but on a theory that PeaceHealth’s bundled
discounts effectively left insurers with no rational
economic choice other than purchasing [the tied
product] from PeaceHealth.”
Cascade Health Solutions v. PeaceHealth, 502 F.3d 895, 929 n.30 (9th Cir.
2007)
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Are Patents Different?
• Schor v. Abbott Labs (7th Cir. 2006)
• Abbott holds a patent on protease inhibitor
called ritonavir (Norvir), used to treat AIDS.
• Norvir is dangerous alone, but is very effective
as a booster for other protease inhibitors.
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Schor v. Abbott Labs
• Abbott thus sells Kaletra, which combines the
Norvir booster with another inhibitor.
• Plaintiffs want Abbott to sell Norvir alone, so
that it can be combined with competitive
inhibitors, but Abbott allegedly charges much
more for Norvir alone than for Kaletra.
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Is Abbott “Tying” Kaletra to Norvir?
• NO: “Abbott sells ritonavir as part of Kaletra, but this
is not a tie-in because ritonavir is available separately
as Norvir. Abbott will sell to anyone willing to pay its
price: there is no refusal to deal. The price of Norvir
cannot violate the Sherman Act: a patent holder is
entitled to charge whatever the traffic will bear. This
is true of both Norvir’s price, and of a claim that the
patent holder has engaged in price discrimination ….”
Schor v. Abbott Labs., 457 F.3d 608, 610 (7th Cir. 2006)
82
Technological Ties
I ABA Antitrust Law Developments (Seventh):
• “Physical tie-ins that result from redesigning the
tying product so as to make the products of rival
sellers incompatible generally have been upheld
as lawful.” (p. 185)
– citing, e.g., Foremost Pro Color, Inc. v. Eastman
Kodak Co., 703 F.2d 534, 543 (9th Cir. 1983)
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Is Your iPod A Techno Tie?
• “The Ninth Circuit in [Foremost Pro] identified the
technological tie as a species of tying arrangement, but
expressly declined to find that allegations of
technological ties, without more, could provide the
basis for per se Section 1 liability. …Ultimately, this
Court is not aware of any case where per se tying
liability was found on the basis of a technological tie.”
The Apple iPod iTunes Antitrust Litigation at 8, No. C 05-00037 JW (5/15/2009)
84
“Rule of Reason” Tying Cases
• Brantley v. NBC Universal, 2012 WL 1071257
(3/30/12)
• Tying ‘good’ cable shows to ‘bad’ cable shows
• Requires competitive effect in tied market
• Reduced choice and higher prices for consumers not
enough, given procompetitive tendencies of tying.
85
Two Products???
• Rick-Mik Enterprises, Inc. v. Equilon Enterprises LLC,
532 F.3d 963, 975 (9th Cir. 2008):
• “Applying the ‘character of demand’ test, Rick-Mik's complaint
fails to plead facts necessary to assess whether credit-card
services are distinct from the franchise agreements.
• ….With franchises, the franchisee knows the contractual
limitations and duties before entering into the contract. A
complaint about such contractual obligations is not an antitrust
matter.”
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Checklist of ‘Other’ Defenses
• No financial interest in the tied product
• There is no reduced competition in the tied market, because
– customer would not have bought it at all, or
– the tied market is already monopolized
• No antitrust injury (without an impact on competition)
• Tie fits an exception to per se rule
– necessary for new product
– Microsoft (software?)
– Grappone catch-all (any other ‘efficient’ reason)
87